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THE RECORD WAS SILENT ON WHETHER DEFENDANT SIGNED THE WAIVER OF INDICTMENT IN OPEN COURT; DEFENDANT’S GUILTY PLEA WAS VACATED AND THE SUPERIOR COURT INFORMATION WAS DISMISSED (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea and dismissing the superior court information, determined the record was silent about whether defendant signed the waiver of indictment in open court:

A defendant “may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney” and “such waiver shall be evidenced by [a] written instrument signed by the defendant in open court in the presence of his or her counsel” (NY Const, art I, § 6; see CPL 195.20)…. The record contains a written waiver of indictment signed by defendant and witnessed by counsel on August 3, 2020, the date he appeared before County Court and entered his guilty plea. The minutes of that appearance reflect that defendant orally agreed to waive indictment and affirmed that his signature is on the written waiver, but the minutes are silent as to whether defendant signed the written waiver in open court. Moreover, there is no reference in the written waiver or in County Court’s order approving the waiver that indicates that the waiver was signed in open court. In light of this jurisdictional defect, defendant’s guilty plea must be vacated and the superior court information must be dismissed …. People v Rickman, 2022 NY Slip Op 05112, Third Dept 9-1-22

Practice Point: If the record does not reflect that the waiver of indictment was signed in open court, the defendant’s guilty plea must be vacated and the superior court information dismissed.

 

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